111 Neb. 733 | Neb. | 1924
In a prosecution by the state in the district court for
It is argued that the prosecution should have been abated and the proceeding dismissed on the ground that a prosecuting attorney invaded a constitutional right of defendant by requiring him as a subpoenaed witness to testify against himself before the grand jury that indicted him. Defendant is not entitled to a reversal on this ground, for the reason that he did not, when interrogated as a witness before the grand jury, claim the privilege of declining to testify to facts incriminating himself — a privilege which may be waived by the failure to assert it.
The sufficiency of the indictment was challenged by both motion and demurrer and the overruling of each is assigned as error. Defendant with a number of others was indicted for a conspiracy to commit a felony, a penal offense under a recent statute. Comp. St. 1922, sec. 9543. The' felony which defendant and others were charged with a conspiracy to commit was the procuring of money and other property by means of false pretenses. Comp. St. 1922, sec. 9892. According to the indictment the conspirators agreed, in substance, omitting names, to falsely and fraudulently represent that the Great Western Commercial Body Company, a corporation, was solvent and had earned profits for the payment of dividends, and that the conspirators agreed to use these false and fraudulent representations as inducements to prospective purchasers of capital stock of that corporation, and thus to feloniously procure from them money and other property with the intent to cheat and defraud them. The overt acts to effect the object of the conspiracy, like the conspiracy itself, were charged in details unnecessarily prolix.
It is argued that the indictment is fatally defective for want of a direct charge that the conspirators knew the representations which they agreed to make were then false or
The giving of the following instruction is assigned as error:
“Under the. bankruptcy laws of the United States, and under the definition in force in this state, insolvency means*736 that the party whose business is in question is unable to pay his debts as they become due in the ordinary course of his-daily transactions.”
This is a misstatement of the law applicable to a material issue. Under the federal bankruptcy act the test of insolvency is the insufficiency of the available property to pay debts. U. S. Comp. St. 1918, sec. 9585. The definition in force in this state is at variance with the instruction. Hackney v. Raymond Bros. Clarke Co., 68 Neb. 624. In a recent case it was said:
“ ‘Insolvency,’ as that term is ordinarily used, is not the same thing as a mere failure to pay debts, but, as applied: to an individual or a corporation, it means an insufficient amount of property to pay debts.” Frank v. Stearns, ante,. p. 101.
In the instruction, therefore, the district court departed from both the act of congress and the definition of insolvency in force in this state. The doubtful character of the evidence relating to insolvency and to the intent to cheat and defraud might have resulted in a verdict of not guilty, had proper instructions been given. In passing on the case erroneously submitted the jury in their verdict of guilty made the following recommendation:
“The jury strongly recommend clemency of the court, because of the extenuating conditions existing at the times under which the unlawful acts were, as charged in the indictment, committed.”
On the record presented the error in the instruction quoted was clearly prejudicial to defendant, and for that reason the judgment is reversed and the cause remanded for further proceedings.
Reversed.